Campaign
Schedule 5: Campaign rules: civil sanctions
284.Schedule 5, introduced by section 14(5), of this Act contains powers for the Electoral Commission to impose civil sanctions in respect of specified campaign offences.
Part 1: Fixed monetary penalties
285.Paragraph 1 allows the Electoral Commission to impose fixed monetary penalties of £200 where they are satisfied beyond reasonable doubt that a campaign offence listed in Part 7 of schedule 5 has been committed or, in the case of a permitted participant, where there has been a contravention of requirements to deliver certain returns under paragraph 24 of schedule 3. The penalties can be imposed either on a person or on a permitted participant where the responsible person for that permitted participant has committed the offence.
286.Paragraph 2 sets out the representations and appeals processes. The Commission must serve notice of an intention to impose a fixed monetary penalty on a person. This must offer the opportunity to discharge the penalty by paying £200. Alternatively, the person can opt to make written representations and objections to the Commission against the penalty. If the deadline for making representations and objections passes without the person having paid, the Commission must decide whether to impose the penalty and serve a further notice imposing the penalty on the relevant person (sub-paragraph (4)). If the person’s representations have raised any matter that leads the Commission no longer to be satisfied that the person was at fault, the Commission may not impose the penalty. The person may appeal to the sheriff against the decision to impose the penalty on the grounds set out in sub-paragraph (6) within 28 days of a notice imposing the penalty being received, and the penalty is suspended until the appeal is determined or withdrawn.
287.Paragraph 3 sets out what information the Commission must include when giving notice of an intention to impose a fixed monetary penalty on a person or when giving notice of a subsequent decision to impose the penalty. This must include the grounds for imposition of the sanction, the right to make representations or appeals and the time periods in which these can be made.
288.Paragraph 4 makes provision for the late payment of fixed monetary penalties. If the penalty is not paid within 28 days of the notice being received, the amount of the penalty is increased by 25%, and if it is not paid within 56 days, the amount is increased by 50%. Where a penalty is upheld on appeal, or such an appeal withdrawn, similar increases apply from the determination or withdrawal of the appeal.
289.Paragraph 5 limits the criminal proceedings that can be taken against a person for a listed campaign offence or other breach that may be dealt with by way of a fixed monetary penalty. If the Commission notify the person of their intention to impose a fixed monetary penalty for the breach, no criminal proceedings for the breach can be brought during the period when liability can be discharged under paragraph 2(2). This paragraph also precludes such proceedings being taken against a person who does discharge liability by making the payment. Finally, paragraph 5(2) precludes a person on whom the Commission imposes a fixed monetary penalty under paragraph 2(4) from being convicted of an offence for the breach.
Part 2: Discretionary requirements
290.Paragraph 6 allows the Electoral Commission to impose a discretionary requirement on a person where they are satisfied, beyond reasonable doubt, that the person has committed one of the listed offences or (in the case of a permitted participant) there has been a contravention of the relevant return delivery requirements in paragraph 24 of schedule 3. A discretionary requirement as a sanction can take the form of a monetary penalty or alternatively an instruction to take certain actions designed either to prevent the recurrence of the offence or contravention or to restore the position to what it would have been had the offence or contravention not occurred. Sub-paragraph (4) limits the use of discretionary requirements by preventing the Commission from imposing a discretionary requirement on a person more than once for the same act or omission. The maximum monetary penalty is £500,000 under sub-paragraph (3), but sub-paragraph (6) sets a further limit for offences which are triable summarily only—where such offences are punishable by a fine, the variable monetary penalty must not be greater than the maximum fine.
291.Paragraph 7(1) requires that, where the Commission intend to impose a discretionary requirement on a person for a listed campaign offence or other breach, they must first notify the person of their intention. Sub-paragraph (2) allows the person to make written representations and objections to the Commission against the proposed penalty. If anything is raised which leads the Commission to no longer be satisfied that the offence or contravention took place, the Commission may not impose the penalty (sub-paragraph (4)). In all other cases, the Commission may proceed to serve on the person a notice formally imposing the discretionary requirement, which will specify what the requirement is (sub-paragraph (5)). The person may appeal to a sheriff against the decision to impose the discretionary requirement on the grounds specified in sub-paragraph (6), and the discretionary requirement is suspended until the appeal is determined or withdrawn.
292.Paragraph 8(1) sets out what information the Commission must include when giving the initial notice of an intention to impose a discretionary requirement on a person. This includes the grounds for imposing the requirement and the period within which representations and objections may be made (no less than 28 days from the day on which the notice is received). Sub-paragraph (3) sets out the information that must be provided by the Commission when they are imposing a discretionary requirement, such as the grounds for the proposed discretionary requirement, details of any monetary penalty, rights of appeal and the consequences of non-compliance.
293.Paragraph 9 limits the use of other sanctions against a person who has had a discretionary requirement imposed upon them. If a discretionary requirement is imposed on a person, that person cannot be convicted of a criminal offence arising from the same act or omission. However, this protection from future prosecution does not apply in cases where the discretionary requirement imposed was non-monetary, no variable monetary penalty was imposed, and the person failed to comply with the non-monetary discretionary requirement.
294.Paragraph 10 provides that where the Commission are satisfied that a discretionary requirement has been complied with, they must issue a certificate confirming that this is the case. This causes the original requirement notice to cease to have effect. A person who has been served with a discretionary requirement notice may apply to the Commission for a compliance certificate and the Commission must decide whether to issue one within 28 days. If the Commission decide not to issue a certificate, the applicant may appeal to a sheriff within 28 days of the date of receiving the Commission’s decision.
295.Paragraph 11 allows the Commission to impose a ‘non-compliance penalty’ on a person who fails to comply with a non-monetary discretionary requirement. The amount of a non-compliance penalty is to be decided by the Commission but must not exceed £10,000. A non-compliance penalty is paid to the Commission. A notice must be served including the grounds for imposing the penalty, specifying a period of at least 28 days to comply, and informing about the right of appeal to the sheriff against a non-compliance penalty (sub-paragraph (4)). A person served with a non-compliance penalty may appeal to a sheriff within 28 days against the notice on the ground that the decision to serve it was based on error of fact, wrong in law, or unfair or unreasonable. Where an appeal is made, the non-compliance penalty is suspended until the appeal is determined or withdrawn.
296.Paragraph 12 requires that a variable monetary penalty must be paid within 28 days of the relevant notice being received, or the amount of the penalty will increase by 25%. If the penalty is not paid within 56 days of the notice being received, it will increase by 50%. Where a penalty is upheld on appeal, or such an appeal withdrawn, the penalty falls to be paid within 28 days of the day of determination or withdrawal. If it is not paid within that period, similar increases apply from the determination or withdrawal of the appeal.
Part 3: Stop notices
297.Paragraph 13 provides that the Electoral Commission can impose a stop notice on a person in order to prevent the person from continuing or repeating a particular activity until the person has taken the steps specified in the notice. The Commission can serve a stop notice where it reasonably believes that the person’s activity is (or is likely to be) an offence listed in Part 7 of schedule 5. A stop notice can also be imposed where the Commission believe that a person’s likely activity is (or is likely to be) a listed offence. In both cases the Commission must believe that the activity, or potential activity, is seriously damaging public confidence in the effectiveness of the controls in schedule 3, or significantly risks doing so. The stop notice must specify steps which would prevent the activity being a listed offence.
298.Paragraphs 14 to 17 set out the details and limitations of how the stop notice system operates. Paragraph 14 lists the information to be included in a stop notice—the grounds for imposition, rights of appeal and consequences of non-compliance. Paragraph 15 requires the Commission to issue a ‘completion certificate’ once they are satisfied that the person has taken the steps set out in the stop notice (at which point it will cease to have effect). The person upon whom a notice has been imposed may apply for a completion certificate at any time and the Commission must make a decision on the application within 14 days of receipt. Paragraph 16 sets out how a person may appeal against the imposition of a stop notice, or against a decision not to issue a completion certificate, and provides that any appeal will be heard by a sheriff. It also sets out the grounds for appeal in both circumstances. Paragraph 17 provides that a person who does not comply with a stop notice is guilty of an offence.
Part 4: Enforcement undertakings
299.Paragraph 18 sets out the powers of the Electoral Commission to accept an enforcement undertaking from a person whom the Commission have reasonable grounds for believing has committed a campaign offence listed in Part 7 of the schedule. An enforcement undertaking may be offered by the person suspected of the offence and outlines the action the person will take (within a specified period). The action may be with a view to preventing the recurrence of the offence or contravention or returning the position to what it would have been had the offence or contravention not taken place. Sub-paragraph (1)(d) states that the undertaking will take effect only if the Commission accept it. Sub-paragraph (2) provides that a person who has complied with the accepted undertaking will generally be exempt from other sanctions, including criminal proceedings, in relation to the acts or omissions on which the undertaking is based.
300.Paragraph 19 makes provision about the form of enforcement undertakings and provides that they may be varied by agreement between the person who has entered into it and the Commission. It also permits the Commission to publish enforcement undertakings. Paragraph 20 sets out the process by which the Commission may issue a compliance certificate for an enforcement undertaking, which has the effect that the undertaking ceases to have effect. Paragraph 21 provides for the grounds and time limit (28 days) for appeal against a decision not to issue a compliance certificate.
Part 5: General and supplemental
301.Paragraph 22 limits the use of fixed monetary penalties, discretionary requirements and stop notices. It provides that a fixed monetary penalty may not be imposed on a person if the person is already subject to a discretionary requirement or stop notice for a breach. Additionally, if a person has had a fixed monetary penalty imposed on them for a breach, or has paid a sum to discharge liability for a fixed monetary penalty, the person cannot be given a discretionary requirement or a stop notice in relation to the breach.
302.Paragraph 23 allows the Commission to withdraw a fixed penalty notice, withdraw or vary notice of a discretionary requirement and withdraw a stop notice. If a stop notice is withdrawn, this does not prevent another stop notice in respect of the same activity.
303.Paragraph 24 provides that, if someone is required under schedule 4 to make a statement as part of an investigation by the Electoral Commission, the Commission must not take account of that statement when deciding whether to impose a civil sanction on the person. The only exception is for the offence of providing false information set out in paragraph 12(3) of schedule 4.
304.Paragraph 25 stipulates that any financial penalty imposed on an unincorporated association must be paid from its own funds.
305.Paragraph 26 requires the Commission to publish guidance about enforcement of the campaign rules. The guidance must include details of the sanctions available (both civil and criminal), the circumstances in which civil sanctions may be used and the rights of appeal available. Sub-paragraph (7) requires the Commission to carry out consultations with persons that they consider appropriate prior to publishing guidance. Under sub-paragraph (8) the Commission are required to have regard to the guidance when exercising their functions.
306.Paragraph 27 enables the Commission to recover fixed monetary penalties, variable monetary penalties and non-compliance penalties as a civil debt. Any interest or financial penalty for late payment may also be recovered as a civil debt.
307.Paragraph 28 stipulates that the monetary penalties paid to the Commission as a result of the imposition of civil sanctions under schedule 5 must be paid into the Scottish Consolidated Fund.
308.Paragraph 29 requires the Commission to make a report about their powers under this schedule. The report must include the cases (other than those where sanctions have been successfully appealed against) in which they have imposed fixed monetary penalties, discretionary requirements or stop notices; cases in which liability for a fixed monetary penalty has been accepted through payment of a sum; and cases in which an enforcement undertaking has been accepted. Sub-paragraph (3) enables the Commission to exclude information if it might be unlawful for the report to include it or might adversely affect ongoing investigations or proceedings. The information may be included in the report on the conduct of the referendum under section 29, in a separate report, or in a combination of the two. The report must be laid before the Scottish Parliament, and published thereafter.
309.Paragraph 30 allows procurators fiscal or constables in Scotland to disclose information to the Electoral Commission when the Commission are exercising the powers under the schedule. It will not enable disclosure where that would breach the Data Protection Act 1998 or Part 1 of the Regulation of Investigatory Powers Act 2000 or in relation to certain reserved enactments. It also provides that other powers of disclosure that are independent of this power are not affected by it.
310.Paragraph 31 sets out the powers of a sheriff on appeals against civil sanctions imposed by the Commission. If a person appeals a fixed monetary penalty, the sheriff may overturn or confirm the penalty. On an appeal against a discretionary requirement, non-compliance penalty or stop notice, the sheriff may overturn, confirm or vary the sanction. The sheriff also has the same powers as the Commission as to steps that may be taken in response to such an appeal, or can remit the decision regarding the requirement or notice, or matters relating to the decision, to the Commission. On an appeal against a decision by the Commission not to issue a completion certificate for a stop notice, a compliance notice for a discretionary requirement, or a compliance certificate for an enforcement undertaking, the sheriff may require the Commission to issue the appropriate completion or compliance certificate.
Part 6: Interpretation
311.Paragraph 32 sets out definitions of words and expressions used in schedule 5.
Part 7: Listed campaign offences
312.Part 7 lists the campaign offences for which civil sanctions may be imposed under the provisions of schedule 5.
